Sunday, March 11, 2007

sex toys, part two: limited or unlimited government?

Part two of two on sex toys and the U.S. Constitution. Click here for part one.

There is nothing conservative about American conservatism. It is and always has been a program for the never-ending expansion of state power over the moral and sexual choices of private individuals. When it comes to private morality, conservatives believe in the unlimited power of the state to impose the majority's will on all.

Do I exaggerate? Let's consider the evidence.

The conservative model of the morality-policing state is nowhere clearer than in Justice Scalia's dissent in Lawrence v. Texas, where he noted that

'Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation.' (539 US 558, 589)

Factually, Scalia is undoubtedly correct: the state has traditionally tried to police the sexual conduct of its citizens by claiming a compelling state interest in morals. This has been the basis of criminal laws against pre-marital sex, extra-marital sex, sex toys, cohabitation, and so on. But should sexual morality among consenting adults be a state interest at all? Are such state powers constitutional? And what rights and freedoms can an individual claim against the tyranny of the majority?

Until 1965 preventing people from having deliberately non-reproductive sex was still a state interest. Then came the Supreme Court decision of Griswold v. Connecticut (381 US 479), which overturned the state's law barring contraception. The people arrested were not even a couple; they were two directors of Planned Parenthood of Connecticut. Writing for the Court, Justice Douglas asked,

'Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.' (381 US 479, 485)

The key word there is 'privacy', as in the right to privacy, a legal doctrine that, incredibly, began with this case.

I call it incredible because one would have thought that the Constitution had created a government of limited powers, but conservatives don't see it that way. According to them, when it comes to individual morality and freedom, there is no such thing as protection from majority rule. Apparently, for conservatives, morality takes a village.

The question for conservatives is not, What powers have we allowed the state to have over us in our Constitution? but rather, What powers does the Constitution still allow us that we have not surrendered to the state? Does the individual possess only the freedoms explicitly enumerated, like religion, speech, press, assembly, and petition, as provided by the First Amendment? Or do the people retain the powers not specifically given to the state, as described by the Ninth Amendment? (The Ninth Amendment: 'The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.')

All this came back to mind when I read the news that the United States Court of Appeals for the Eleventh Circuit had ruled, in the fifth decision of this ping-ponging case, that Alabama's law against sex toys was constitutional. It was an earlier decision in the very same case that Scalia had referred to in his Lawrence dissent. (The latest round of the case is known as Williams v. King, King being the Alabama attorney general. Earlier rounds were known as Williams v. Pryor, but thanks to George W. Bush, William Pryor is no longer a state attorney general waging crusades against sex toys. He is now a federal judge on—yes—the United States Court of Appeals for the Eleventh Circuit.)

'It shall be unlawful for any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.'

The maximum penalty for a first offense: $10,000 and a year in prison at hard labor. And the appellate court's decision:

'Accordingly, we find that public morality survives as a rational basis for legislation even after Lawrence, and we find that in this case the State’s interest in the preservation of public morality remains a rational basis for the challenged statute.'

The Ninth Amendment, Griswold, Lawrence—none of it means anything to these radical conservative judicial activists. If the state has the power to police morality, I want to know where in the Constitution one can find it.But that's what conservatives do. They go on inventing new powers for the state: the president's power to ignore new laws by drafting presidential signing statements; the president's power to suspend habeas corpus for five years running; and—not a new power but an old one revived—the right of the state to police our sex lives.

What's ironic here is that conservatives typically assume the mantle of limited government. They talk about getting the government off our backs, but what they really want is to get the government in our bedrooms, in our e-mail, and on our genitals. Frankly, I'd rather have the government on my back.

9 Comments:

steve said...

I love the image of conservatives wanting to get government "on our genitals". It reminds me of the Fun Lovin' Criminals: "I got supermodels on my D." Personally I would rather have Kate Moss than Dick Cheney on my D. But I suppose there are many Bush voters who would prefer it the other way round.

It seems to me that we need a word to show how these radical conservatives, as you rightly call them, are on the same side as others who have wished that law be coextensive with morality: the architects of the French terror, for example, or those Islamists who wish to enshrine Sharia law through force. They are all on the same side, and it's a bad side. Plainly, as you point out, "conservatives" is entirely the wrong description. What should we call them?

Steve has identified such an important rhetorical gap, i.e. the lack of a common term for American conservatives and Islamists, that I have made it the subject of a new neologism contest.

As for the 'right to privacy', I was worried that someone would point out that, in Fourth Amendment jurisprudence, it's actually older than Griswold v. Connecticut (1965): see Mapp v. Ohio, 367 US 643 (1961). What I meant was that Griswold was the first time the Supreme Court tried to articulate a sexual right to privacy, in this case for married couples. The phrase does in fact appear in the decision. For the earlier history of the phrase, see Griswold, footnote 1.

Sure, my point was merely that while Griswold finds a right to privacy to be within the "penumbra", as it marvellously puts it (one of those penumbras that can be "formed by emanations"), of the Bill of Rights and the Fourth and Fourteenth Amendments, it's not actually until Roe v Wade that an explicit "right of privacy" is argued to be constitutionally guaranteed (by the Due Process clause of the Fourteenth Amendment).

But these wranglings you well narrate prompt another question. Is the kind of Constitutional analysis performed by "radical conservatives" closer to something like Maoism or totalitarianism in general? The slogan of both parties would appear to be: Everything which is not explicitly permitted is forbidden.

Except that the principle works inversely for their own actions. Thus: everything which is not explicitly forbidden (like the new form of torture we just made up and so was not specifically outlawed by name when they wrote the laws against torture) is permitted! They're very liberal among themselves.

Steve, you're right to point out the silliness of Justice Douglas's metaphors in his decision for the Court in Griswold. Such an important turning point in constitutional jurisprudence should not have been left to Douglas's lesser writing skills. Goldberg's concurring opinion makes a better case without inviting decades of ridicule. The words of the Ninth Amendment need no embellishment.

I don't understand your suggestion about Maoism. Could you say more?

It's not the case that, by their reading, everything is forbidden but, rather, that everything is forbiddable.

Of course everything they do is legal. If they were true conservatives, they would think twice before expanding the powers of the state, particularly the executive branch, lest they one day soon find themselves out of office. But, of course, there is little that is true or reasonable about Bush-era American conservatism.

I fully agree with Jeff Strabone's points in his article. I often wonder myself why conservatives, who claim they want smaller government and less intrusion into their way of life feel it is necessary to police the way of life of those who differ from them. I had no idea that the "right to privacy" was such a new invention but I am certainly happy that it exists.

well steve your right the question for conservatives is not, What powers have we allowed the state to have over us in our Constitution? but rather, What powers does the Constitution still allow us that we have not surrendered to the state?

'Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.' (381 US 479, 485)